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COA rules on landowner first-impression issue

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For the first time, the Indiana Court of Appeals needed to decide whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree falling from the landowner's property.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, No. 20A03-0908-CV-366, Cindy Cain's home is next to a vacant lot owned by Marjorie Marshall, which John helped to manage. Elkhart code enforcement told them that a tree on the lot needed to come down, so John had a professional arborist inspect the tree. The arborist just visually inspected the tree and determined it didn't need to be taken down. The tree later fell onto Cain's house. Her insurer, Erie, reimbursed her for the repairs and brought a suit against the Marshalls for damages for negligent maintenance of the tree. Marjorie died before the bench trial concluded.

The trial court entered judgment in favor of Erie; John filed a motion to correct error, which the trial court denied.

John argued there was insufficient service of process upon Marjorie. Even though someone else signed the return receipt indicating the notice was received, the service by mail was effective, ruled the appellate court.

John also claimed the trial court erred in finding they owed a duty of care to Cain. Judge Margret Robb wrote it would appear the Restatement (Second) of Torts section 363 forecloses the issue of whether the Marshalls owed any duty to protect Cain from the fallen tree. But that would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure a dangerous tree just because it was a natural condition of the land. Like several other states, the appellate court adopted a reasoning that departed from the strict application of the rule in context of urban or residential property.

Living in close quarters substantially increases the risk that a falling tree will cause damage or injure someone, and similar to the problem relating to a highway - as mentioned in the Restatement rule - the reduced size of property lots in an urban or residential setting make the burden of time and money to inspect and secure trees relatively minor especially as compared to the potential damage that could result from the tree's fall, she wrote.

The appellate judges held that an urban or residential landowner has the duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the conditions of trees on his or her property.

The trial court properly applied a duty of reasonable care to the Marshalls, and properly found that sufficient evidence supported the Marshalls breached that duty and that John was jointly and severally liable since he acted as Marjorie's agent in care of the lot.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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